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2018 DIGILAW 700 (ORI)

Naran @ Narayan Behera v. Harekrushna Behera

2018-07-31

BISWANATH RATH

body2018
JUDGMENT BISWANATH RATH, J. - This writ petition involves a challenge to the impugned order dated 14.03.2011 passed in Civil Suit No.1138 of 2009-I involving allowing an application for amendment of written statement as well as introduction of a counter claim at the instance of the defendants. 2. Factual scenario as available from the records appended thereto and the pleadings of the parties, it appears the petitioner-plaintiffs filed Civil Suit No.1158 of 2009-I, a suit for partition along with related decrees on 23.11.2009. Consequent upon notice, the defendants filed written statement on 18.05.2010. During pendency of the suit, an application under Order 6, Rule 17 of C.P.C. along with introduction of counter claim was filed by the defendants on 08.02.2011. The plaintiffs as opposite parties in their objection resisting the Order 6, Rule 17 of C.P.C. application along with the counter claim, contended that on introducing such application the defendants have not only attempted to bring new facts which were already within their knowledge, but in the process the defendants are also attempting to bring completely new issues with clear intention to delay the trial involving the suit and accepting such application may result in depriving the plaintiffs from their relief. It is also contended that the counterclaim also involves new cause of action which may be irrelevant for the purpose of decision in the suit. On hearing the submission of both the sides, the trial Court by the impugned order allowed the written statement as well as the counter claim at the instance of the defendants resultantly giving rise the present writ petition. Shri Prusty, learned Counsel appearing for the petitioners on reiteration of all the above further referring to the provisions at Order 8, Rule 6-A of C.P.C. submitted that there is no judicious application of mind on considering such issue by the trial Court and unless the impugned order is interfered and set aside, it will get a bad precedent. 3. Shri Mishra, Learned Counsel appearing for the contesting opposite party Nos.1 and 2 while supporting the impugned order, referring to a decision of the Hon’ble Apex Court in the case of Raj Kumar Bhatia vrs. Subhash Chandra Bhatia, reported in 2018 (I) OLR (SC) 278, contended that for the judgment of the Hon’ble Apex Court, the only question remains to be decided is to compensate the parties likely to be affected by way of cost. 4. Subhash Chandra Bhatia, reported in 2018 (I) OLR (SC) 278, contended that for the judgment of the Hon’ble Apex Court, the only question remains to be decided is to compensate the parties likely to be affected by way of cost. 4. As narrated hereinabove, the suit was filed on 23.11.2009, the written statement was filed on 13.05.2010 and the application under Order 6, Rule 17 of C.P.C. involving a counterclaim was filed on 08.02.2011. There is no dispute that the suit involves a partition suit between the family members. Reading of the written statement, inter-alia, the counter claim, this Court finds, there is disclosure of certain facts which as per this Court, rather not only facilitate an effective partition of the joint family property but will also avoid multiplicity of litigations amongst the family members. This Court further observes, for the acceptance of the counter claim the plaintiffs involving the suit also get the scope for the written statement to the counter claim and the consequential evidence accordingly. It is at this stage, taking into consideration the provisions contained in Order 8, Rule 6A of C.P.C. this Court finds the provision reads as follows:- “6-A. Counter claim by defendant - (1) A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counterclaim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counterclaim is in the nature of a claim for damages or not. Provided that such counterclaim shall not exceed the pecuniary limits of the jurisdiction of the Court. (2) Such counterclaim shall have the same effect as a cross-suit so as to enable the court to pronounce a final judgment in the same suit, both on the original claim and on the counterclaim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counterclaim of the defendant within such period as may be fixed by the court. (3) The plaintiff shall be at liberty to file a written statement in answer to the counterclaim of the defendant within such period as may be fixed by the court. (4) The counterclaim shall be treated as a plaint and governed by the rules applicable to plaints.” On perusal of sub-rule (1) leaves no room for any doubt that the cause of action, in respect of which a counterclaim can be filed, stage accrues before the defendant has delivered his defence. In the instant case, from the application under Order 6, Rule 17 of C.P.C., it appears, there is prima-facie disclosure by the defendants of the cause of action after the suit is filed on 28.11.2009. It is at this stage, looking to the claims made in the counter claim, this Court finds, the defendants brought the counterclaim on 08.02.2011 and for the pleadings brought therein the defendants were even entitled to file a fresh suit within three years from the date of above cause of action. It is in this view of the matter, this Court observes, since the counterclaim was brought to the Court within one year and four months, allowing such counterclaim will be otherwise restricting the multiplicity of litigations. This Court further observes, on allowing such counter claim thereby be also avoidance of unnecessary repetition of evidence in a fresh suit. In the interest of justice and further considering that the suit is a partition suit, for the betterment of the parties involved all issues involving all the properties between the parties to the suit should be tried together in this particular suit. Further, looking to the provision at sub-rules (3) and (4) of Order 8, Rule 6-A of C.P.C., this Court further finds, the plaintiffs involved herein have also opportunity of filing the written statement in response to the allowing of counterclaim involved herein. It is here, this Court taking a cue from a decision of the Hon’ble Apex Court in the case of Vijay Prakash Jarath vrs. Tej Prakash Jarath, reported in (2016) 11 S.C.C. 800 , this Court finds, the Hon’ble Apex Court in paragraph 10 have the following view: “10. It is here, this Court taking a cue from a decision of the Hon’ble Apex Court in the case of Vijay Prakash Jarath vrs. Tej Prakash Jarath, reported in (2016) 11 S.C.C. 800 , this Court finds, the Hon’ble Apex Court in paragraph 10 have the following view: “10. It is quite apparent from the factual position noticed hereinabove, that after the issues were framed on 18.10.1993, the counterclaim was filed by the appellants before this Court (i.e. by Defendants 3 and 4 before the trial court) almost two-and-a-half years after the framing of the issues. Having given our thoughtful consideration to the provisions relating to the filing of counterclaim, we are satisfied, that there was no justification whatsoever for the High Court to have declined, the appellant before this Court, from filing his counterclaim on 17.6.1996, specially because, it is not a matter of dispute that the cause of action, on the basis of which the counterclaim was filed by Defendants 3 and 4, accrued before their written statement was filed on 11.11.1992. In the present case, the respondent-plaintiff’s evidence was still being recorded by the trial court, when the counterclaim was filed. It has also not been shown to us, that any prejudice would be caused to the respondent-plaintiff before the trial court, if the counterclaim was to be adjudicated upon, along with the main suit. We are of the view, that no serious injustice or irreparable loss (as expressed in para-15 of Ballepanda P. Poonacha case), would be suffered by the respondent-plaintiff in this case.” Similarly, taking into account another decision of the Hon’ble Apex Court in the case of Raj Kumar Bhatia (supra) though involving allowing an application under Order 6, Rule 17 of C.P.C., from paragraphs 11 to 13 the Hon’ble Apex Court observe as follows : “11. This being the position, the case which was sought to be set up in the proposed amendment was an elaboration of what was stated in the written statement. The High Court has in the exercise of its jurisdiction under Article 227 of the Constitution entered upon the merits of the case which was sought to be set up by the appellant in the amendment. This is impermissible. Whether an amendment should be allowed is not dependent on whether the case which is proposed to be set up will eventually succeed at the trial. This is impermissible. Whether an amendment should be allowed is not dependent on whether the case which is proposed to be set up will eventually succeed at the trial. In the enquiring into merits, the High Court transgressed the limitations on its jurisdiction under Article 227. In Sadhana Lodh v. National Insurance Company (2003) 3 SCC 524 , this Court has held that the supervisory jurisdiction conferred on the High Court under Article 227 is confined only to see whether an inferior court or tribunal has proceeded within the parameters of its jurisdiction. In the exercise of its jurisdiction under Article 227, the High Court does not act as an appellate court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior court or tribunal has passed an order. The Trial Court had in the considered exercise of its jurisdiction allowed the amendment of the written statement under Order 6 Rule 17 of the CPC. There was no reason for the High Court to interfere under Article 227. Allowing the amendment would not amount to the withdrawal of an admission contained in the written statement (as submitted by the respondent since the amendment sought to elaborate upon an existing defence. It would also be necessary to note that it was on 21 September, 2013 that an amendment of the plaint was allowed by the Trial Court, following which the appellant had filed a written statement to the amended plaint incorporating its defence. The amendment would cause no prejudice to the Plaintiff. 12. In the view which we have taken, it has not become necessary to consider the alternative submission of the appellant namely, that recourse taken to the jurisdiction under Article 227 by the respondent after filing an application for review before the Trial Court was misconceived. Since the matter has been argued on merits, we have dealt with the rival submissions. 13. Hence, on a conspectus of the facts and having due regard to the nature of the jurisdiction under Article 227 which the High Court purported to exercise, we have come to the conclusion that the impugned judgment and order is unsustainable. We accordingly allow the appeal and set aside the judgment of the High Court. The order passed by the Trial Court allowing the amendment of the written statement is accordingly affirmed.” 5. We accordingly allow the appeal and set aside the judgment of the High Court. The order passed by the Trial Court allowing the amendment of the written statement is accordingly affirmed.” 5. For the observations of this Court and the view of the Hon’ble Apex Court as reflected hereinabove, this Court finds, the trial Court has the justified approach in allowing the written statement/counterclaim. For no infirmity in the impugned order, this Court declining to grant relief claimed in the writ petition dismisses the writ petition. In the circumstances, no order as to costs. Petition dismissed.